Geneva, 29 Jan (Chakravarthi Raghavan) - Talks have been resumed at the WTO on
implementing para six of the Doha declaration on TRIPS and Public Health, where an end
December deadline has been missed at the General Council. The General Council is holding a
session on 10-11 February, when the issue is bound to come up, and the TRIPS Council will
have an opportunity to report.

At the informal meeting of the TRIPS Council on Tuesday (28 Jan), the EU's "compromise"
proposal to implement para six of the Doha declaration on TRIPS and Public Health, was
introduced and explained by the EC ambassador, Mr. Carlo Trojan, who also answered a list
of questions by South Africa, and Morocco for the African Group making clear the group is
yet to consider and take a position on the proposals.

Amb. Eduardo Perez Motta of Mexico said he will be reconvening the meeting on 5 February,
by when it is hoped the African Group would discuss and take a position.

The WHO itself, both Dr. Brundtland, and her successor-to-be, Dr Jong Wook Lee of South
Korea, have said that the scope of diseases should not be narrowed.

The United States at the meeting Tuesday did not commit itself or make its views known on
the Lamy compromise, and gave no indication that it would be changing its unilateralist
approach. While in December, it had announced a moratorium on disputes against those
countries invoking the Doha declaration and issuing a compulsory licence for drugs for
HIV/AIDS, Tuberculosis and Malaria, the actual terms of the 'moratorium' in a notification to
the WTO, showed it was even more circumscribed.

At Tuesday's meeting, while Morocco for the Africans said the group is yet to discuss and
take a position, and South Africa posed a number of questions, Kenya, which last year had
been coordinating the group on this issue, said they would go by the 16 December text.

The EC compromise is in reality no more than what had been suggested in the final days of
the December consultations, at the green room meetings convened by the WTO head, Dr.
Supachai Panitchpakdi, and which was turned down by the developing countries.

The EC compromise, floated by the EC Commissioner, Pascal Lamy, in January, says in a
footnote, that "this (public health problems recognized in para 1 of the Doha declaration)
covers at least HIV/AIDS, malaria, tuberculosis, yellow fever, plague, cholera, meningococcal
disease, African trypanosomiasis, dengue, influenza, leishmaniasis, typhoid fever, typhus,
measles, shigellosis, haemorrhagic fevers, and arboviruses. When requested, by a Member,
the World Health Organization, 'shall give' its advice as to the occurrence in an importing
Member, or the likelihood thereof, of any other public health problem."

According to trade diplomats, in response to questions, Trojan said that the WHO's advice
(with the WHO mandated to provide an advice) is to be 'non-binding' on the member seeking
it!

This would imply, for example, that if country 'A' in Africa issued a compulsory licence on an
European supplier, the EC may ask the WHO's view, whereupon the WHO must provide the
advice, but the EC need not be bound by it - so to say three layers of judgements over the
health authorities of country 'A' in Africa and their perception of a public health problem
within their country!

In an interview to the Paris newspaper, 'Liberation', (published by the paper in its issue
dated 10 January, under the heading, "The European Union would like to give itself a good
conscience," and distributed via internet list server, by the US-based international NGO,
Consumer Project for Technology) the WHO Director, German Velasquez, had said that the
proposal of the EC to bring in the WHO was all the more surprising since the WHO had been
pushed aside in the informal consultations at Sydney in November, and at Geneva in
December. Pascal Lamy, he noted, had never sought the WHO views on this matter. "If he
had done so, he would have known our position is diametrically opposed to his," the
Liberation quotes Velasquez as saying.

"It is not the place of the WHO to define a limiting list. The national authorities of developing
countries are in a better position to identify public health priorities. To play this game would
be a step back, in view of the results from Doha, which allowed countries the opportunity to
define them themselves.."

In further responses to the French newspaper, Velasquez is also quoted as agreeing with the
questioner that perhaps the WHO has been set up, even if though it probably was not the
intention of the EU's Trade Commissioner. "If we say,'yes, the list is fine' or 'no, such and
such a disease should be added,' then we are entering into the logic of a limiting, yet global
list, when the topic is much more complex and different - unique diseases existing on every
continent."

The French paper also cites Velasquez as saying, in response to other questions about the
European offer, that Europe supports the American proposition, but now would like to have a
good conscience by leaning on the WHO for support to sweeten the pill. As for the US
guarantee that it would not press charges against the developing countries that import the
generics drugs, "this does not solve the problem; there is already a de facto moratorium, one
imposed by international opinion, which is very sensitive to this question."

At Tuesday's TRIPS Council informal meeting, the US did not commit itself or make any
comments on the EC proposal, but spoke of a need for a speedy multilateral solution, and of
the US unilateral moratorium as a useful first step, but not a final solution. Canada also said
it was refraining from raising disputes, and in effect seemed to attempt to pressure the
developing countries to agree.

At the Davos World Economic Forum meeting, the South African trade minister, Mr. Alec
Erwin, had held some highly publicised meetings with big pharmaceutical companies and the
WTO head Dr. Supachai. After the meetings, Supachai had expressed some optimism about a
compromise being near, and so did Erwin, though they did say "we are not there yet".

The series of questions posed by the South African trade diplomats here at the informal
TRIPS meeting however led to some disquiet among other Africans, several of whom said
they had asked South Africa whether its questions implied it was willing to discuss the
'scope' issue, but that they had been told that South Africa was merely trying to understand
the EC move.

After Morocco's statement that the African Group would comment later, Brazil and China
made clear they could not accept the proposal because it narrowed down the scope of
paragraph 1 of the Doha declaration. India, Argentina, Colombia, Peru and Thailand,
Bangladesh for the LDCs, also spoke, but perhaps less forthrightly and in a more nuanced
way.

Kenya, which has been the African coordinator, speaking for itself, said that they should not
be discussing the scope of diseases, but rather on the implementation of para six of the
Doha Declaration. India expressed itself in favour of a multilateral solution, to which all
members could subscribe (in a reference to the unilateral US policy announced at the end of
December, and circulated by the US officially via the WTO on 14 January - in effect
restricting the scope of the moratorium even more). On the EC proposal, India said that it
had listened to the views of South Africa, Kenya, Peru, China, Bangladesh and Brazil, and
added: "Our position is similar to theirs. We believe that the 16 December draft is a balanced
text arrived at after extensive negotiations and would be a better basis for a constructive
solution to this issue."

Several of the Third World diplomats, speaking non-attributively, complained about the media
barrage and red herrings being drawn by the PhRMA and their promoters in industrial
countries, by the talk of Third World country governments trying to expand the Doha
declaration to get compulsory licences for all kinds of pharmaceutical products and the
prospects of their 'misusing' the TRIPS Art 31. f to compulsory licence 'viagra' (purported
life-style drug to combat male impotency).

The diplomats and public health civil society groups point out that there is nothing in TRIPS
that can prevent a country with a pharmaceutical capacity to issue a licence for any
patented drug even now.

The Doha declaration's para six is not about interpretation or reinterpretation of the TRIPS
31.f, but how countries with no or insufficient manufacturing capacity, can be enabled to
make use of their rights and the flexibilities under TRIPS, to get essential medicines at
affordable prices for tackling public health. The scope of that Declaration, set out in para 1,
was a text negotiated with some difficulty, before and at Doha, and in an effort by all to
reach a compromise.

And countries and governments using para 6 of the Doha declaration are likely to act
responsibly, taking full account of the effects of their actions on investors. To use the
viagra issue to attack the Doha compromise and dilute and restrict it, in an attempt to
pander to the interests of the big PhRMA and their profits, is to strengthen hands of those
campaigning against the WTO, and bring to a new low, the already low credibility of the
WTO.

The major industrial nations, and many others, routinely issue compulsory licences, and not
merely for public health reasons, and or issue licences without compensation on grounds of
countering anti-trust behaviour of holders.

A recent example in the US (reported in USA Today), has been of the action of the Federal
Trade Commission's enforcers recommending initiating a lawsuit to take away the patent
rights for clean-fuel patents of Unocal on anti-trust grounds. According to the report,
Unocal, with other major oil refiners (including ExxonMobil) had formulated clean fuel
standards, which could be fulfilled only by using a patent process of Unocal. The latter had
applied for a patent, without disclosing it to the standard setting meeting. ExxonMobil and
other major oil firms had said that they would end up paying royalties to Unocal, and that
refining fuel in other ways would be even more expensive. A federal judge who had ordered
the oil firms to pay the royalties, has now delayed the order, pending the outcome of the
FTC probe.

Perhaps there is now a case for governments of developing countries, both those issuing
patents, as well as those in the health administrations allowing marketing, to apply more
strictly the TRIPS and its stipulations for the grant of a patent for technological processes or
products, namely "they are new, should involve an inventive step and are capable of
industrial application." These combined with a requirement that alleged new drugs should be
tested, not against placebos as now, but drugs now being used, and whether they are more
efficacious.